Cooper Tp. v. Little

• Decision Date: 02 October 1922
• Docket Number: No. 81.,81.
• Citation: 220 Mich. 62,189 N.W. 914
• Parties: COOPER TP. v. LITTLE, Drain Com'r. SAME v. LITTLE, Drain Com'r, et al.
• Court: Michigan Supreme Court

220 Mich. 62

189 N.W. 914

COOPER TP.

v.LITTLE, Drain Com'r. SAME v. LITTLE, Drain Com'r, et al.

No. 81.

Supreme Court of Michigan.

Oct. 2, 1922.

Appeal from Circuit Court, Kalamazoo County; Guy M. Chester, Judge.

Consolidated suits by the Township of Cooper against Albert Little, Drain Commissioner of Kalamazoo County, and by the same plaintiff against the same defendant and others. From a decree for plaintiff, defendants appeal. Appeal dismissed.

Argued before FELLOWS, C. J., and WIEST, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Stephen H. Wattles, Pros. Atty., and Charles L. Dibble, Asst. Pros. Atty., both of Kalamazoo, for appellants.

Harry C. Howard, of Kalamazoo, for appellee.

FELLOWS, C. J.

These two cases involve the same drain. In the circuit court they were consolidated, heard as one case, and a decree granting plaintiff relief was entered and filed June 17, 1921. Defendants filed their claim of appeal June 20, 1921, but did not then or have they since paid the fee of $5 provided for in section 13754, C. L. 1915. Appellee moves to dismiss the appeal. This is met by appellant with the claim that, inasmuch as the principal defendant is the county drain commissioner and his proceedings in laying out the drain are involved, the litigation is county litigation, that the fee would be paid from the general fund into the general fund, and that such a proceeding would be an idle ceremony, not required in order to give this court jurisdiction.

This court in numerous cases has held that the right to appeal is statutory, that the mandatory provisions of the statute must be complied with in order to give this court jurisdiction of the case, that jurisdiction may not be conferred by consent, and that this court will of its own motion decline to consider cases upon the merits which it had not jurisdiction to decide. We do not understand this to be controverted. Some of the authorities we considered and cited in the recent case of Potaschnik v. Kaimola, 216 Mich. 406, 185 N. W. 824. We shall therefore proceed to the consideration of the claim of defendant that in this case the statutory requirement is not applicable because the litigation is county litigation.

If we accept counsel's premise, there is much force in his contention. Our difficulty in following counsel's contention grows out of our failure to agree with his premise. In Cilley v. Sullivan, 187 Mich. 447, 153 N. W. 773, we followed Attorney General v. McClear, 146 Mich. 45, 109 N. W. 27, in holding that in so far as matters of public health were concerned the county drain commissioner performed a state function, but neither of the cases had under consideration the question of the fiscal affairs of drain proceedings. In a long line of cases beginning with Dawson v. Aurelius Township, 49 Mich 479, 13 N. W. 824, this court has uniformly recognized that the fiscal affairs of a drain were separate and distinct from the general fiscal affairs of the municipality, and that the municipality was not bound or obligated by the acts of the drain commissioner. Among the cases see: Camp v. Township of Algansee, 50 Mich. 4, 14 N. W. 672;Wallace v. Sortor, 52 Mich. 159, 17 N. W. 794;Taylor v. Township of Avon, 73 Mich. 604, 41 N. W. 703;Hillyer v. Township of Jonesfield, 114 Mich. 644, 72 N. W. 619;Jenney v. Township of Mussey, 121 Mich. 229, 80 N. W. 2. In Dawson v. Aurelius Township, supra, it was said by the court speaking through Mr. Justice Cooley:

‘Township drain commissioners are elected in the townships, but they have their independent duties to perform, in respect to which they neither are under the control of the township nor is the township as such in any manner concerned. The laying out of drains is commonly a matter of mere neighborhood interest; they affect small bodies of land; the taxes laid are local assessments, and do not and cannot under the statute become a general charge. In the performance of his duties, the commissioner is in no sense the agent of the township, and there is no township responsibility for his defaults or misconduct.'

And in Taylor v. Township of Avon, supra, Mr. Justice Champlin who wrote for the court said:

‘We see no reason why the township is or should be liable for the illegalities in the proceedings to lay out and establish a drain, or why it should be obliged to pay back taxes illegally assessed and collected for drain taxes. If this judgment against the township is affirmed, it will have to be collected by a general levy upon the town, instead of lands specially benefited by the drain, and there is no way for the town to reimburse itself. If the township was legally liable for the torts and misdoings of its officers in laying out drains, and collecting the taxes for benefits, this would be no objection; but there is no statute making it liable, and...